The Arturo

6 F. 308 | U.S. Circuit Court for the District of Massachusetts | 1881

Lowell, C. J.

The careful collection of authorities by counsel will save me the necessity of citing thorn. They do not decide the precise question of this case. Two tugs, belonging to different owners, are sent to tow a vessel under a general order for towage given by her master through other persons. If the owners of the tug first spoken to undertook to do the work, or cause it to he done, they may be regarded as the sole contractors, hound by their undertaking to see that it is properly done, and they would bo personally liable for any negligence, defect in machinery, disobedience of orders, or whatever else, on the pari of either vessel, may have caused the damage. Under the statute for limited liability, (Rev. St. § 4283,) it might be impossible to recover the whole loss; but to the extent of the value of the tugs there would be a remedy in rein. The ownership of the tugs would not be material, except as regards the limitation of personal liability. If the tugs were owned, borrowed, or hired by the contractor, their liability in rein would be the same. If, then, it were proved that the J. C. Cottingham hired the Nabby C., as alleged in the answer of the appellants, it would not, in my opinion, exempt their tug.

Upon the evidence as I understand it, however, the J. C. Cottingham did not undertake to do the work and furnish all necessary assistance; Mr. Sprague, who acted for the ship, engaged both tugs. The transaction appears to me, as to the district judge, to be, in effect, several contracts for a joint operation. If, therefore, one tug was wholly in fault, as by a defect of her machinery or the like,' she alone would be responsible. But for their joint action, so far as it conduced to the loss, I hold them to be jointly responsible. And that is this ease.

If the usage of the port undertook to throw upon one tug the responsibilities of two or more, it would be void; but I do not understand that any such usage was proved. The usage is that the captain of the first tug has charge of the enterprise. Some one must have the sole authority, and it is as convenient and proper a rule as any other, that it should be that one who is first engaged. But this is only a rule of convenience, and what it does in respect to the. tow is to make the master of No. 1 master, likewise, of No. 2. If Captain Scollay had any doubt of the competency of Captain Chase, the usage would not require him to serve. He might decline to work oh those terms; but when he accepts the usage, in the particular case, he accepts a master for his vessel.

These cases of tow against tug are, in form and fact, very like collision cases. The contract gives rise to duties very closely resembling those which one vessel owes to others which it may meet. There is, therefore, an analogy between the two classes of cases so close that the tow may sue in one proceeding for damage her own tug and a strange vessel with which there has been a collision.

If a ship in command of a pilot whom it was compelled to take, injures another ship through fault of the pilot, the ship is liable unless exonerated by statute. If charterers are owners for the voyage, and appoint the master and crow, the ship is still liable. If she were navigated by pirates, who had run away with her, she would, in my opinion, be responsible to the injured ship. If she is in tow, her liability does undoubtedly depend upon whether her master or the master of the tug commands the two vessels, if the negligence is that of the commander. This is a relaxation of the old doctrine of the liability of the vessel. But, even then, the ownership of the tug or tow is immaterial. I cannot doubt that the rule is the same as to two tugs, or any number. If the tow does not command, the tugs do, and they arrange between themselves how the navigation shall be conducted. The rights of third persons do not depend upon their ownership or command. I have taken for granted that there might be a still further relaxation as to any fault distinctly committed by one of them only.

If the ease depends upon contract, I think the owners, of each tug pledged her that no fault should be committed by her; if, upon general doctrines of admiralty law, which are, to some extent, independent of contract, the vessel actually in fault, through negligence in her mode of navigation, though the negligence is that of a temporary master adopted by usage, is liable.

There is no question that the navigation was so negligently conducted that, in broad daylight, with obvious conditions of wind and tide, the ship was landed upon a well-known shoal. There is none that Captain Chase should have taken a line to the wharf, or have provided, in some other of the modes suggested by the experts, for counteracting the effect of the -wind and tide; nor that Captain Scollay’s tug, without any fault of his, or his crew, aided to run the ship aground.

In this state of facts, both tugs aro liable for the damage.